EMPLOYMENT LAW NEWS

Some new law for you to take notice of - Holiday makers.

The Supreme Court has recently delivered its ruling on the effects of section 44(1) Holidays Act 2003. There were five Judges on the Bench and two dissented from the majority.

In short the decision is as follows;

Section 44(1) of the Holidays Act 2003, sets out the 11 public holidays that an employee is entitled to if they fall on working days. If an employee works on any of the public holidays listed, they are entitled to be paid  at the rate of time and a half and to be granted an alternative day to be taken later and on pay.

Section 44(2) allows for any of the listed days to be observed on a different day by agreement between the parties. Reading this it was thought that if the day was to be observed later, then an employee who worked on the listed day, would not be paid time and a half but rather ordinary rates, and that the time and a half and alternative day entitlement would be transferred to the day that the holiday was to be observed.

Not so says the Supreme Court majority. It says that despite agreeing to observe the public holiday on a different day, the actual day in the Holidays Act cannot be transferred.

So despite an employer and an employee agreeing to observe the day on another day, you will still need to pay time and a half and give a day in lieu if an employee works on the listed day because you cannot transfer the day to the day of observance.

The effect of this judgment is that section 44(2) is of no use because in other parts of the Holidays Act an employee is entitled to an alternative day if they work on a public holiday in any event. 

Following this judgment, there is now no point in agreeing to a different day of observation if you cannot transfer the legal requirements attached to the day.

You may as well observe the day as listed in the Holidays Act and use the alternative provisions if an employee works on the day.

We take this opportunity to wish you all a very Merry Christmas and Prosperous New Year and may you all have a relaxing break over the holiday period.

Our offices will be closed from Thursday 20 December and reopen on Monday 14 January.

If you have an urgent matter that needs to be dealt with during this time that can’t wait til our office reopens, you can phone Gary on 027 201 7179.